EX-10.65





CONFIDENTIAL TREATMENT REQUESTED UNDER

C.F.R. SECTIONS 200.80(b)(4), 200.83 AND 230.406.

[*****] INDICATES OMITTED MATERIAL THAT IS THE

SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST

FILED SEPARATELY WITH THE COMMISSION.

THE OMITTED MATERIAL HAS BEEN FILED

SEPARATELY WITH THE COMMISSION.



Exhibit 10.65



AUTHORIZED SALES REPRESENTATIVE AGREEMENT — Version for Investor Partners




     This Authorized Sales Representative Agreement (“Agreement”) is executed by and between
[Newco, a Delaware limited liability company] (“Newco”) and the entity described below
(“Company”). The Agreement consists of the Standard Terms and Conditions attached hereto and
Exhibits incorporated into this Agreement by reference.



	 	 	 
	 

	 	NEWCO
	Business Name:

	 	Newco LLC
	 

	 	Attn:
	Street Address:
	 	 
	City, State, Zip Code:
	 	 
	Phone:
	 	 
	Fax:
	 	 
	*Newco Market Business Contact:
	 	 
	*Email:
	 	 
	*Market:
	 	 
	Newco Business Contact Phone:
	 	 
	 

	 	ASR INFORMATION
	Business Name:

(*Doing Business Under this name)
	 	 
	Tax ID No:
	 	 
	Street Address:
	 	 
	City, State, Zip Code:
	 	 
	Company Business Contact and Email:
	 	 
	Phone and Fax Numbers:
	 	 
	Effective Date of Agreement:

(date signed)
	 	 
	Term of Agreement:

	 	Initial period of 1 year, and any renewal periods
	Market Area of Agreement:
	 	 






ACKNOWLEDGED AND AGREED:




	 	 	 
	COMPANY

	 	Newco LLC
	Signature:

	 	Signature:
	Print Name:

	 	Print Name:
	Print Title:

	 	Print Title:









			
	* Required Field






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Proprietary and confidential information of Newco. Not for use by any third party, or disclosure to any third party,
other than Company and Newco and its Affiliates, except with Newco’s written approval.




 









 





STANDARD TERMS AND CONDITIONS





	1.	 	Definitions.
	 
	 	 	“Activation” or “Activated” means the initiation of Authorized Newco Services in Equipment
that is owned or leased by a Subscriber.
	 
	 	 	“Advertising Guidelines” means those guidelines and any updates or revisions thereto posted
via link at www.newcopartner.com, or such other website to be determined.
	 
	 	 	“Affiliate” means an entity that directly or indirectly, through one or more intermediaries,
controls, is controlled by or is under common control with a party.
	 
	 	 	“Agency Sales Representative Agreement” means any agreement between Newco and National
Retailer for the sale or distribution of Authorized Newco Products and Services.
	 
	 	 	“Area” means the portions of the US and US territories covered by the Newco network where
Newco offers service, and where the Company is authorized to sell 4G MVNO services, pursuant
to the 4G MVNO agreement between Company and Newco.
	 
	 	 	“Authorized Newco Products and Services” means any Newco broadband wireless products and
services that this Agreement authorizes Company to sell or distribute on behalf of Newco.
	 
	 	 	“Closing Date” means the date of closing of the transaction, as specified in the TAPM.
	 
	 	 	“Equipment” means the Newco-approved communications equipment needed for using Authorized
Newco Services.
	 
	 	 	“Highest Aggregate Commission” means the commission with the largest value based upon the
combination of (and averaging of, when applicable) all respective elements of the commission
as a whole to enable comparison on a like for like basis.
	 
	 	 	“Marks” means any and all trademarks, service marks, domain names, trade names, insignia,
symbols, logos, or decorative designs, which Newco or any Newco Affiliate owns, or is
authorized by lease or sublicense to use, in connection with the Authorized Newco Services
or the Equipment or otherwise.
	 
	 	 	“National Retailers” are third parties who are in the business of selling retail wireless
communications services through their own nationwide networks of retail stores.
	 
	 	 	“Subscriber” means any person or entity enrolled by Company and whose Authorized Newco
Services are activated, provided that each Authorized Newco Services number assigned to a
Newco customer is deemed to be a separate Subscriber, regardless of how many Authorized
Newco Services Equipment numbers may be assigned to or used by any one customer. The
Parties agree that all devices sold by Company will need to be identified or counted for
purposes of payment of compensation.
	 
	2.	 	Relationship of the Parties.
	 
	2.1	 	Authorized Representative-No Joint Venture. The relationship between Newco and
Company arising from this Agreement does not constitute or create a general agency, joint
venture, partnership, employment relationship or franchise between them. Company does not have
authority under this Agreement to execute contracts on behalf of Newco, or to otherwise bind
Newco. Company and Newco are parties to two additional agreements, the ___dated ___
and the ___dated ___, which this Agreement supplements. This Agreement does not
supersede or amend the terms and conditions of those additional agreements in any way.
	 
	2.2	 	Control and Supervision. Company represents and warrants that (i) Company is engaged
in an independent business; (ii) Company will perform its obligations under this Agreement as
an independent contractor; (iii) the persons performing services on behalf of Company under
this Agreement are not employees or agents of Newco; and (iv) Company has and retains the
right to exercise full control of and supervision over the performance of Company’s
obligations in this





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Proprietary and confidential information of Newco. Not for use by any third party, or disclosure to any third party,
other than Company and Newco and its Affiliates, except with Newco’s written approval.




 









 






	 	 	Agreement and full control over the employment, direction, compensation and discharge of all
employees, contractors or agents of Company. Company will be solely responsible for all
matters relating to payment of its employees, contractors or agents, including compliance
with workers’ compensation, unemployment, disability insurance, social security, withholding
and all other federal, state, and local laws, rules and regulations governing such matters.
	 
	2.3	 	No Exclusivity. This is a nonexclusive agreement with respect to Newco. Except as
otherwise provided or restricted in an agreement and/or amendment between Newco and Company,
Newco expressly reserves the right, without obligation or liability to Company, to market and
sell the Authorized Newco Services, the Equipment, and any other products and services in the
same Area served by Company, whether through Newco’s own stores or representatives or through
others, including, but not limited to, other authorized representatives, dealers, resellers,
distributors, and retailers.
	 
	2.4	 	Reserved. 
	 
	2.5	 	Relationship with Sub-Representatives. Company shall not enter into agreements with
any Person (a “Sub-Representative”) to solicit sales of Authorized Newco Services on behalf of
Company or Newco.
	 
	3.	 	Company Responsibilities.
	 
	3.1	 	Services Provided. Subject to all terms and conditions in this Agreement, Newco
appoints Company as one of its Authorized Representatives and Company accepts such
appointment. Company may, solely within the Area, (i) solicit Subscribers for Authorized
Newco Services and (ii) assist in the Activation process for such Subscribers as provided in
this Agreement or as otherwise directed by Newco in writing from time to time. Company will
also sell Newco Services as part of a bundle under the 4G MVNO Agreement, and Company has no
obligation to sell Authorized Newco Services under this Agreement over the bundled Newco
Service in the 4G MVNO Agreement.
	 
	3.2	 	Geographic Area. Company shall not offer Authorized Newco Services except in the
Area.
	 
	3.3	 	Rates. Company will solicit sales of Authorized Newco Services at the rates that
Newco publishes in its rate plan brochures, or other Newco documentation, as revised from time
to time (the “Published Rates”) and in accordance with the terms and conditions of Newco’s
then-current form of Subscriber agreement. Company will not vary the Published Rates or any
terms and conditions of Authorized Newco Services.
	 
	3.4	 	Ownership of Customer. Upon enrollment of a particular Subscriber in accordance with
Newco’s Activation procedures, the Subscriber becomes solely a customer of Newco with respect
to the Authorized Newco Services. Newco is responsible for billing and collection efforts, as
it determines to be appropriate in its sole discretion. Company will retain no ownership right
to the Subscriber data or information. This provision in no way affects the ownership rights
Company may have to the same Subscriber data through its own customer relationships
independent of the enrollment of the Subscriber to the Authorized Newco Services.
	 
	3.5	 	Service. Newco will provide all support on the Authorized Newco Services offered by
Newco. Company will direct all Subscribers who request troubleshooting assistance, or
assistance with Activation or warranty issues, or who have problems with the Equipment, to
make contact with Newco’s customer service department and Company will not provide such
assistance.
	 
	3.6	 	Compliance with Newco Operational Procedures. Company agrees to follow procedures
that comply with Newco’s policies and requirements with regard to the Activation of
Subscribers on the Authorized Newco Services as specified in Newco’s manuals and training
guides as may be amended and distributed by Newco from time to time upon 30 days written
notice to Company. If directed to do so by Newco, Company may collect from Subscribers
deposits on Newco’s behalf securing the Subscriber’s payment to Activate Service.
	 
	3.7	 	Inspection. Company will allow Newco reasonable access to Company’s public sales
facilities for inspection regarding compliance with Newco’s Activation policies and to verify
Company’s inventory of Equipment.





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Proprietary and confidential information of Newco. Not for use by any third party, or disclosure to any third party,
other than Company and Newco and its Affiliates, except with Newco’s written approval.




 









 






	3.8	 	Access to Newco Systems. Company will only access Newco’s systems under this
Agreement to Activate Subscribers, or access Subscribers’ accounts, as authorized and
permitted by Newco. Company will provide and make available all equipment necessary for such
access. However, if any equipment is provided by Newco for use in connection with this
Agreement, such equipment shall remain the property of Newco. Any software provided by Newco
for use in connection with such equipment may be subject to a separate license agreement.
Company will not and will not allow any other Person to use its Company code(s) or other
identifying access codes or passwords provided by Newco.
	 
	3.9	 	Inventory and Equipment Ownership. Company agrees to deliver to Subscribers, in
accordance with Newco’s instructions and Activation procedures, Equipment to be used by
Subscribers of Authorized Newco Services. Company may only distribute Equipment to
Subscribers in the Area. The terms and conditions for the Equipment shall be reasonably
determined by Newco and shall be stated in the agreement between Newco and the Subscriber.
The policies, procedures, and economic terms concerning inventories and Equipment ownership
between the Parties will be based on future product roadmaps and compensation structures, with
such terms to be finalized no later than the Closing Date, as defined in the TAPM.
	 
	3.10	 	Costs and Expenses. Company will be responsible for all costs and expenses
associated with its business and its performance of its obligations under this Agreement, such
as rent, utilities, employee costs, and costs associated with Equipment storage.
	 
	4.	 	Privacy.
	 
	4.1	 	Protection of Subscriber Information. Company agrees that during and after the term
of this Agreement, Company will not reveal, divulge, make known, retain, sell, exchange, give
away, or transfer in any way any information regarding Newco Subscribers to any Person other
than Newco, except with the express prior written permission of Newco and as required under
applicable law. Any use by Company of subscriber-specific information (including, but not
limited to, Customer Proprietary Network Information) is subject to the orders, rules and
regulations promulgated by the FCC and other regulatory agencies. If any use of such
information is determined to be in conflict with an order, rule or regulation of the FCC or
other regulatory agency, Company will cease such use immediately.
	 
	4.2	 	Customer Records.  Company will keep all Service Agreements and related
documents (“Customer Records”) at the relevant Facility for a minimum of four years from the
date of their creation, and will return them as directed by Newco at the end of that time
period. Alternately, Company may request to turn over the records to Newco before the end of
the four year period. Company will not destroy the original copies of Customer Records.
Newco may request that Company return Customer Records to Newco at any time, and Company will
immediately return the original copies of the Customer Records.
	 
	4.3	 	Safeguards. Company is fully responsible for Newco Subscriber information.
Company will utilize administrative, physical, and technical safeguards that prevent the
unauthorized collection, access, disclosure, and use of Newco Subscriber information. These
Safeguards will:






	 	A.	 	assign random passwords and other access controls so that only
employees, representatives, agents, contractors, and Subcontractors of Company who have
a business need to access or use Newco Subscriber information may access or use it;
	 
	 	B.	 	encrypt Newco Subscriber information when not directly being used by an
authorized person while on Company’s network and at all times while in course of
transmission;
	 
	 	C.	 	use appropriate firewalls, virus protection and other technical
safeguards against intrusion upon, and harmful transmissions to, any network or
facility on which Newco Subscriber information is stored;
	 
	 	D.	 	grant access privileges to Newco Subscriber information only as needed by
employees, representatives, agents, contractors and of Company who have a business need
to use that Subscriber information, and prompt revocation of such privileges when no
longer required;





 4 



Proprietary and confidential information of Newco. Not for use by any third party, or disclosure to any third party,
other than Company and Newco and its Affiliates, except with Newco’s written approval.




 









 






and




	 	E.	 	train employees and other persons with access to Newco Subscriber
information in proper security practices and procedures.






	4.4	 	Notice of Security Breach. Company must promptly notify Newco of any facts known to
Company concerning any accidental or unauthorized access, disclosure or use, or accidental or
unauthorized loss, damage or destruction of Newco Subscriber information by any current or
former employee, representative, contractor, or agent of Company or by any other person or
third party. Company will notify Newco within 24 hours of learning of the loss or theft of
Customer Records, Newco Confidential Subscriber information, or Product.
	 
	4.5	 	Return of Newco’s Subscriber information. Company will return, or at Newco’s election,
destroy (and certify the destruction in writing) all Newco Subscriber information upon the
termination or expiration of this Agreement, or earlier if requested to do so in writing by
Newco.
	 
	4.6	 	Customer Lists. Company will not sell or provide to any third party a list of Customers that
subscribed to Newco’s Services through Company’s efforts, or that Company knows have
subscribed to Newco Services.
	 
	5.	 	Insurance. Each party agrees to maintain insurance coverage against liability
arising out of this Agreement under one or more policies of insurance from a recognized
insurance company qualified to do business within the Area providing minimum liability
protection of one million dollars ($1,000,000.00) per occurrence for bodily and personal
injury and death and one million dollars ($1,000,000.00) per occurrence of property damage.
The CGL policies of each party will name the other party as “additional insureds,” and each
workers compensation insurance policy and/or CGL policy shall contain a waiver of subrogation
clause. Each such insurance policy shall provide for not less than thirty (30) days prior
notice to all insureds of any modification, cancellation or non-renewal. Upon request, each
party will furnish certificates of insurance or other proof satisfactory to the other party
that the insurance coverage required in this Agreement is in force.
	 
	6.	 	Financial Matters.
	 
	6.1	 	Compensation. Company will be compensated as provided on Exhibit A.
	 
	6.2	 	Records. Company will keep and maintain for four (4) years complete and accurate
records of the Newco Subscriber Agreements and related documents for Subscribers Activated by
Company pursuant to this Agreement. Company will provide Newco with all Subscriber sales
information, including any mutually agreed upon back-up documentation, such as the
identification of the store or Company’s address from which the delivery of the Equipment was
made, the date of the subscription and delivery of the Equipment, description of the Equipment
and a copy of the Subscriber’s service order completed by Company, which shall specify, among
other pertinent information, the Subscriber’s Authorized Newco Services Equipment number.
Company will maintain and, upon request, provide to Newco full, accurate and complete back-up
documentation in accordance with Newco’s written Activation policies covering each Subscriber.
Newco may deduct previously paid compensation as a charge-back from future compensation due
Company in the event that Newco does not receive the appropriate documentation from Company.
	 
	6.3	 	Right to Withhold Payment. Company agrees that if Newco identifies a situation in
which Company’s activities violate this Agreement, Newco may (i) withhold payment of
compensation amounts during the investigation of activities and/or (ii) require Company to
cease all activities in connection with the Authorized Newco Services. Newco agrees that if
it identifies such a situation, it shall provide written notice to Company and Company shall
have 30 calendar days in which to remedy such situation before Newco exercises its rights in
(i) and/or (ii) above.
	 
	6.4	 	Overdue Payment. In the event any amount payable by Company to Newco is more than 30
days overdue, Newco may, at its sole option, elect one or more of the following: (i) require
Company to pay its account in full; (ii) apply commissions, compensation, and any other
credits or other amounts payable by Newco to Company under this Agreement to reduce Company’s
accounts payable balance; or (iii) require Company to pay interest charges in the amount of
1.5% per month, or the maximum





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Proprietary and confidential information of Newco. Not for use by any third party, or disclosure to any third party,
other than Company and Newco and its Affiliates, except with Newco’s written approval.




 









 






	 	 	rate allowed by law, whichever is lower, on the outstanding balance due. In addition to the
foregoing, Newco shall have the right to set off against any payment due Company by Newco in
this Agreement, any amounts owed to it by Company.
	 
	7.	 	Audit.
	 
	7.1	 	During the Term and for one (1) year thereafter, upon reasonable advance notice, once per
calendar year Newco or its designated representatives may audit during normal business hours
the pertinent books and records of Company relating to Company’s obligations under this
Agreement, including but not limited to, records of Activations, deactivations, and Activation
Commission accounts, for the purpose of verifying that all Activation Commissions have been
properly earned, credited and paid, that all leases and sales of Equipment are proper. Newco
will pay all reasonable fees and costs in connection with these audits.
	 
	7.2	 	Company may inspect Newco’s relevant commission records on a day mutually agreed upon by
Newco and Company once per calendar year. Company will pay all reasonable fees and costs in
connection with these audits.
	 
	8.	 	Use of Newco Marks by Company.
	 
	8.1	 	Newco grants Company a limited, non-exclusive, royalty free license to use Newco marks in the
Area for purposes consistent with the terms of this Agreement and in accordance with Newco
guidelines. The license granted in this Agreement will be the non-exclusive right of Company
to use the Marks solely in the Area. Such license may be revoked at any time and Company will
immediately cease use of all Marks upon notice from Newco. Company recognizes the great value
of the goodwill associated with the Marks, and acknowledges that the Marks and all rights in
this Agreement and goodwill pertaining to this Agreement belong exclusively to Newco. All
usage of the Marks by Company and any goodwill established in connection with the Marks inures
to the exclusive benefit of Newco and its Affiliates.
	 
	8.2	 	If Newco decides, in its sole discretion, to require Company to modify or discontinue use of
any Mark or substitute one or more additional trade or service marks to identify its
relationship with Newco, Company will comply with Newco’s instructions. In addition, Company
will, at Newco’s request, replace any signs or other material containing any obsolete Newco
Marks with replacement signs or material approved by Newco, and Newco’s sole obligation will
be to reimburse Company for its reasonable costs to purchase and replace such signs or other
material.
	 
	8.3	 	Upon reasonable notice from Newco, Company will provide Newco with samples of all advertising
and other literature, packages, labels, and labeling prepared by Company which use the Marks
or the logos.
	 
	8.4	 	Company agrees that all displays, banners, signs, retail store signage and other like
tangible property (individually and collectively “Signage”) which bears Newco’s name or Marks
is and will remain Newco property. Unless Newco earlier requests any Signage, Company agrees
to return all Signage to Newco promptly upon expiration or termination of the Agreement, and
to return all such Signage in good condition, less normal wear and tear, or allow Newco to
enter upon Company’s premises and remove the Signage (at Company’s expense) at any time upon
five (5) business days advance notice to Company.
	 
	8.5	 	Company shall not challenge the title or any rights of Newco (or other owners of the Marks) in
and to the Marks either during the term of this Agreement or thereafter.
	 
	8.6	 	Newco may commence or prosecute any claims or suits in its own name regarding the Marks or
join Company as a party to this Agreement for such purposes. When known by Company, Company
will promptly notify Newco in writing of any infringements or imitations by others of the
Marks. Newco will have the sole right to determine whether any action shall be taken on
account of any such infringements or imitations. Company shall not institute any suit or take
any action on account of any such infringements or imitations without first obtaining the
written consent of Newco. At Newco’s request, Company agrees to reasonably assist Newco in
order to protect Newco’s rights to the Marks as provided for under this Agreement. Newco
shall reimburse Company for any costs associated with such request.





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Proprietary and confidential information of Newco. Not for use by any third party, or disclosure to any third party,
other than Company and Newco and its Affiliates, except with Newco’s written approval.




 









 






	9.	 	Compliance with Laws and Business Practices.
	 
	9.1	 	Compliance With Laws. Each party will conduct all activities in connection with this
Agreement in compliance with all applicable laws and regulations (including, but not limited
to, rules and regulations of the FCC and state and local regulatory agencies, and federal,
state and local laws with respect to non-discrimination in government contracts).
	 
	9.2	 	Licenses. Each party will secure and maintain in force all licenses and permits
required to perform their respective obligations under this Agreement, including without
limitation, all required FCC or other permits and certifications, and business and sales tax
licenses.
	 
	9.3	 	Taxes. The Company shall be responsible for any Federal, State and/or Local income
and/or franchise taxes arising or assessed against it as a result of this Agreement. Company
shall promptly pay when due, all taxes and assessments against any real or personal property
used in connection with Company’s business, and all liens or encumbrances of every kind of
character created or placed upon or against any such property, and all accounts and other
indebtedness of every kind incurred by Company in the conduct of its business.
	 
	9.4	 	No Discrimination. Each party expressly agrees not to discriminate against any
Subscriber, employee or applicant for service because of race, color, religion, age, sex,
national origin or physical handicap during the performance of this Agreement and shall comply
with the applicable provisions of non-discrimination laws. Company agrees to submit to Newco,
on Newco’s reasonable request, a written statement that Company is in compliance with this
Section.
	 
	10.	 	Advertising.
	 
	10.1	 	Advertising and Promotion. All advertising and promotion by Company will be
completely accurate and truthful, conform to the highest standards of advertising and
applicable laws. All advertising and marketing materials which Company desires to use in
connection with the Authorized Newco Services under this Agreement must comply with Newco’s
advertising and brand guidelines. Newco reserves the right to terminate, suspend, alter,
modify or amend all or any part of the Advertising Guidelines at any time and in its sole
discretion upon written notice to Company. Company will not engage in any joint advertising,
press releases or other public communications, web site/internet marketing, electronic mail
solicitation or marketing or direct mail or fax campaigns with respect to Authorized Newco
Services under this Agreement without the prior written consent of Newco. Company will return
or destroy such materials to Newco upon request.
	 
	10.2	 	Co-Op Program. Newco may, from time to time, in Newco’s sole discretion, implement a
co-op advertising program (the “Co-Op Program”) designed to allow Company and other Newco
authorized representatives to gain financial assistance with advertising costs when adhering
to the Co-Op Program procedures and guidelines set forth by Newco from time to time (the
“Co-Op Guidelines”) and posted at www.newcopartner.com. Newco reserves the right to
terminate, suspend, alter, modify or amend any part (or all) of the Co-Op Program at any time
and in its sole discretion. ALL ADVERTISING MUST BE APPROVED IN WRITING BY NEWCO. NEWCO DOES
NOT REVIEW ADVERTISING FOR CONTENT (EXCEPT AS EXPRESSLY PROVIDED IN THE GUIDELINES), OR
CONFORMITY OR COMPLIANCE WITH ANY LAWS, RULES AND REGULATIONS. COMPANY IS SOLELY RESPONSIBLE
TO DETERMINE THAT ANY ADVERTISING HAS ALL NECESSARY PERMISSIONS, CONSENTS AND LICENSES OR THAT
SUCH ADVERTISING CONFORMS WITH OR COMPLIES WITH ANY LAWS, RULES OR REGULATIONS.
	 
	11.	 	Limitation of Liability.
	 
	11.1	 	EXCEPT FOR DAMAGES OR LIABILITY ARISING FROM A PARTY’S DUTY TO INDEMNIFY THE OTHER PARTY
UNDER THIS AGREEMENT OR A BREACH OF A PARTY’S OBLIGATIONS UNDER SECTION 17 (CONFIDENTIALITY)
OR A PARTY’S GROSS NEGLIGENCE, NEITHER PARTY HERETO WILL BE LIABLE TO THE OTHER FOR ANY
INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS
OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE)
ARISING OUT OF THIS AGREEMENT OR ARISING FROM OR RELATING TO THE SERVICES OR THE EQUIPMENT,
REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY,
BREACH OF WARRANTIES OR





 7 



Proprietary and confidential information of Newco. Not for use by any third party, or disclosure to any third party,
other than Company and Newco and its Affiliates, except with Newco’s written approval.




 









 






	 	 	OTHERWISE, AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
	 
	11.2	 	EXCEPT FOR DAMAGES OR LIABILITY ARISING FROM A PARTY’S DUTY TO INDEMNIFY THE OTHER PARTY
UNDER THIS AGREEMENT OR A BREACH OF A PARTY’S OBLIGATIONS UNDER SECTION 17 (CONFIDENTIALITY)
OR A PARTY’S GROSS NEGLIGENCE, THE LIABILITY OF EACH PARTY ARISING OUT OF OR RELATING TO THIS
AGREEMENT, INCLUDING WITHOUT LIMITATION ON ACCOUNT OF PERFORMANCE OR NON-PERFORMANCE OF
OBLIGATIONS HEREUNDER, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT,
TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STATUTE OR OTHERWISE, SHALL IN NO EVENT EXCEED
THE TOTAL OF ALL AMOUNTS PAID BY NEWCO TO COMPANY UNDER THIS AGREEMENT IN THE TWELVE (12)
MONTH PERIOD PRIOR TO THE DATE ON WHICH SUCH LIABILITY AROSE.
	 
	12.	 	Assignment. Neither party may assign or transfer, directly or indirect, this
Agreement or any rights or obligations under this Agreement, without the prior written
approval of the other party, except that either party may, without the consent of the other,
assign the Agreement to a controlled subsidiary of that party or a purchaser of all or
substantially all of that party’s assets used in connection with performing this Agreement,
provided the assigning party guarantees the performance of and causes the assignee to assume
in writing all obligations of the assignor under this Agreement. The rights and obligations of
this Agreement shall bind and benefit any successors or assigns of the parties.
	 
	13.	 	Term and Termination.
	 
	13.1	 	Term. The Term of this Agreement shall be for the initial period set forth on page 1
of this Agreement (“Initial Period”) and shall include any renewal periods extending the Term
as set forth in this Section. Following the Initial Period, this Agreement shall
automatically renew in one (1) year periods, unless either party has provided the other party
with at least thirty (30) days prior written notice of its election not to renew or there is a
Termination of the Agreement. Company shall provide Newco written notice of the actual date
on which Company initiates business operations in the Area. Notwithstanding the foregoing,
Company agrees not to begin selling Authorized Newco Services until notified by Newco that (i)
the Authorized Newco Services are available and ready for sale, and (ii) Company’s sales
facilities are approved by Newco for the sale of Authorized Newco Services.
	 
	13.2	 	Termination for Breach. If a party materially breaches this Agreement, and fails to
cure that breach within 30 days after receipt of written notice the other party may terminate
this Agreement.
	 
	13.3	 	Termination for Convenience. Each party may terminate this Agreement effective upon
thirty (30) days written notice to the other party for any reason.
	 
	13.4	 	Survival. Sections 3.4, 3.9, 3.10, 7, 11, 13, 14, 15, 16, 17, 18 and such other
terms, provisions, covenants, indemnities, representations, and warranties contained in this
Agreement that, based on their sense and context are intended to survive the performance of
this Agreement by either or both parties, shall so survive the completion of performances and
expiration or termination of this Agreement.
	 
	13.5	 	Obligations Following Termination. Upon the termination or expiration of this
Agreement, in addition to its other obligations under this Agreement and applicable law,
Company shall, and shall cause its owner(s), Affiliates and Successors to return to Newco all
Equipment and Newco Subscriber lists and related information, all information (as hereafter
defined), advertising and marketing materials, forms, and other materials containing any Mark
or otherwise identifying or relating to Authorized Newco Services business in the Area.
	 
	14.	 	Non-Solicitation.
	 
	14.1	 	During the Term and for a period of one (1) year thereafter, Company will not (and
Company will not permit its officers, directors, key employees, principals, any
Sub-Representative, any Affiliate of Company or any person owning a controlling interest in
Company or an Affiliate of Company to), knowingly target any Subscriber that Company
Activated on Authorized Newco Services for the purpose of switching the Subscriber to
wireless broadband services or other similar services from a provider other than Newco. For
the avoidance of doubt, the prohibition against solicitation in this section will not
restrict Company from sales resulting from communications with Newco subscribers





 8 



Proprietary and confidential information of Newco. Not for use by any third party, or disclosure to any third party,
other than Company and Newco and its Affiliates, except with Newco’s written approval.




 









 






	 	 	which may occur through Company’s standard mass marketing practices such as a mass marketing
campaign to a particular geographic region or customer demographic. It also does not
restrict any passive sale or Customer initiated sales made by Company.
	 
	14.2	 	Employee Non-Solicitation. During the term of this Agreement and for 6 months
thereafter, each Party is prohibited from soliciting or participating in the soliciting of
the other Party’s sales employees for any employment or contracting engagement. For avoidance
of doubt, this restriction will not apply to; a) a party’s standard recruitment efforts,
including, but not limited to posting on job websites; or b) any employee initiated contact
for job opportunities or position fulfillment.
	 
	15.	 	Miscellaneous.
	 
	15.1	 	Severability and Substitution of Valid Provisions. If a court of competent
jurisdiction finds any clause or provision of the Agreement to be unenforceable, then the
Agreement shall be deemed amended to exclude the clause or provision and the remainder of the
Agreement shall continue in full force and effect.
	 
	15.2	 	Waiver of Obligations. Failure or delay by a party to exercise any right or remedy
shall not be a waiver and shall not prevent the enforcement of that or any other right. Any
waiver of a breach shall not waive the right to assert a later breach and all waivers shall be
in writing and executed as provided in this Agreement.
	 
	15.3	 	Rights of Parties are Cumulative. The rights of Newco and Company in this Agreement
are cumulative and no exercise or enforcement by Newco and Company of any right or remedy in
this Agreement shall preclude the exercise or enforcement by Newco or Company of any other
right or remedy in this Agreement or which Newco or Company is entitled by law to enforce.
	 
	15.4	 	Governing Law. Except to the extent governed by United States law that preempts
state law, this Agreement shall be interpreted under and governed by the laws of the State of
New York irrespective of choice of law principles. Unless otherwise required by this
Agreement or applicable law, any legal action or other legal proceeding relating to this
Agreement shall be brought or otherwise commenced in the state or federal court in the State
of New York.
	 
	15.5	 	Cooperation. Matters relating to this Agreement may be an issue before various
regulatory bodies. Upon reasonable notice by a party, the other party agrees to fully
cooperate with the requesting party regarding any such matters. The requesting party agrees to
reimburse the other party for reasonable costs expended in supplying such cooperation.
	 
	15.6	 	Binding Effect. This Agreement is binding upon the parties to this Agreement, their
respective executors, administrators, heirs, assigns and successors in interest.
	 
	15.7	 	Impossibility of Performance. Neither Newco nor Company shall be liable for loss or
damage or deemed to be in breach of this Agreement if its failure to perform its obligations
results from: (i) compliance with any law, ruling, order, regulation, requirement or
instruction of any federal, state or municipal government or any department or agency or court
of competent jurisdiction; (ii) acts of God; (iii) acts or omissions of the other party; or
(iv) fires, strikes, embargos, war, insurrection or riot. Any delay resulting from any of said
causes shall extend performance accordingly or excuse performance, in whole or in part, as may
be reasonable.
	 
	15.8	 	Interpretation. Nothing in this Agreement is intended, nor shall be deemed, to
confer any rights or remedies upon any person or legal entity not a party to this Agreement.
The headings of Sections contained in this Agreement are for convenience only and do not
define, limit or construe the contents of such Sections. This Agreement shall be interpreted
and governed without regard as to which party to this Agreement drafted the Agreement. This
Agreement may be executed in multiple copies, each of which shall be deemed an original.
	 
	16.	 	Indemnity.
	 
	16.1.	 	Company shall indemnify and hold harmless Newco and its Affiliates, and the directors,
shareholders, agents and employees of any of them (“Indemnitees”), from and against any fine,
penalty, loss, cost,





 9 



Proprietary and confidential information of Newco. Not for use by any third party, or disclosure to any third party,
other than Company and Newco and its Affiliates, except with Newco’s written approval.




 









 






	 	 	damage, injury, claim, expense, demand, settlement or liability (individually or
collectively “Liabilities”) arising from Company’s actions or omissions under this
Agreement.
	 
	16.2	 	NewCo shall indemnify and hold harmless Company and its Affiliates, and the directors,
shareholders, agents and employees of any of them (“Indemnitees”), from and against any fine,
penalty, loss, cost, damage, injury, claim, expense, demand, settlement or liability (individually
or collectively “Liabilities”) arising from Newco’s actions or omissions under this Agreement.
	 
	16.2	 	Upon request of the indemnified party, the indemnifying party shall, at no cost or expense to
any Indemnitee, defend and/or settle any claim, proceeding, appellate proceeding, or suit
against Indemnitees for Liabilities, whether or not litigation is actually commenced, or the
allegations are groundless or create the potential for Liabilities, and pay any costs,
attorney fees, and any judgment and/or settlement that may be incurred by any Indemnitee,
under this Section or the enforcement of its rights under this Section. The indemnifying
party shall also (i) keep the Indemnitee and any other Indemnitees subject to such Liabilities
fully informed as to the progress of such defense and/or settlement, and (ii) afford the
Indemnitee or any Indemnitee, each at its own expense, an opportunity to participate on an
equal basis with the Indemnitor in the defense or settlement of any such Liabilities.
	 
	16.3	 	Newco agrees to indemnify, defend and hold Company harmless from any third party claim that
Newco’s Marks directly infringe on any United States copyright, trademark, service mark, or
trade secret arising from the Authorized Newco Services.
	 
	16.4	 	Each Party will notify the other in writing immediately upon the occurrence of any of the
following events that arise directly or indirectly in connection with this Agreement: (a) any claim
made against a Party or; (b) any investigation by any governmental authority; or (c) any suit or
other legal action brought against a Party.
	 
	17.	 	Confidential Information.
	 
	17.1	 	Definition of Confidential Information. 






	 	(A)	 	Definition. “Confidential Information” means information
received by a party in the course of this Agreement that is (1) marked as
confidential or proprietary, or (2) that given the nature of the information or
the circumstances surrounding its disclosure to or receipt, reasonably should be
considered as confidential. Confidential Information may be reduced to writing,
maintained on any form of electronic media, or maintained in the mind or memory
of the receiving party and may be compiled by Newco or Company.
	 
	 	(B)	 	Examples. Examples of Confidential Information include the
Agreement, information regarding existing and potential Newco Subscribers, Newco
Subscriber lists, prospects provided by Newco for the purpose of direct
marketing the Newco Services and Equipment, customer referral programs, Newco’s
unique sales and servicing methods, advertising and promotional materials and
techniques, pricing materials and techniques, vendor and product information,
training courses and materials, and insurance and credit policies.






	17.2	 	Exceptions to Confidential Information. The receiving party is not obligated to
protect Confidential Information that is:






	 	(A)	 	In the public domain through no fault of the receiving party;
	 
	 	(B)	 	Within the legitimate possession of the receiving party, with no
confidentiality obligations;
	 
	 	(C)	 	Lawfully received by the receiving party from a third party
having rights in the information without restriction, and without notice of
restriction against its further disclosure; or





 10 



Proprietary and confidential information of Newco. Not for use by any third party, or disclosure to any third party,
other than Company and Newco and its Affiliates, except with Newco’s written approval.




 









 






	 	(D)	 	Independently developed by the receiving party without breaching
this Agreement, or by parties who have not had, either directly or indirectly,
access to or knowledge of the Confidential Information.






	17.3	 	Protection of Confidential Information. The receiving party will take reasonable
measures to avoid disclosure or unauthorized use of the Confidential Information, including at
a minimum those measures that it takes to protect its own confidential information, but in no
event less than a reasonable standard of care. Each party will utilize reasonable procedures
to prevent the unauthorized use and disclosure of Confidential Information.
	 
	17.4	 	Disclosure of Confidential Information. The receiving party will not disclose
Confidential Information except to its employees, agents or subcontractors that need to know
the Confidential Information to perform Company’s duties under this Agreement, and only to the
extent justifiable by that need. The receiving party must ensure that its employees, agents
and subcontractors are subject to a confidentiality agreement consistent with this Agreement.
The disclosing party may move the ordering court or authority for a protective order or other
appropriate relief.
	 
	17.5	 	Use of Confidential Information. The receiving party will use the Confidential
Information only in the course of performing its duties under this Agreement.
	 
	17.6	 	Copying of Confidential Information. The receiving party will not make any copies of
Confidential Information, except as permitted in writing by the disclosing party. Copies of
Confidential Information are subject to the confidentiality protections of this Agreement.
	 
	17.7	 	Limitations on Export of the Confidential Information. The receiving party will not
export any Confidential Information in any manner contrary to the export regulations of the
United States.
	 
	17.8	 	Return of Confidential Information. Each party will return, without keeping copies,
all Confidential Information of the other party upon the expiration or termination of this
Agreement.
	 
	18.	 	Notices
	 
	 	 	All notices or other communications related to this Agreement must be directed to the
parties’ address listed on page 1, and must be in writing, and will be deemed given on
the day deposited in the U.S. mail (postage prepaid, certified or registered, return
receipt requested), sent by air express courier with charges prepaid, or the date of
transmission by telecopy or other electronic transmission service (with receipt
confirmed). Each party will notify the other in writing with confirmed receipt of any
changes to the notice information.





 11 



Proprietary and confidential information of Newco. Not for use by any third party, or disclosure to any third party,
other than Company and Newco and its Affiliates, except with Newco’s written approval.




 









 





Exhibit A

Compensation




[*****]




 12 



Proprietary and confidential information of Newco. Not for use by any third party, or disclosure to any third party,
other than Company and Newco and its Affiliates, except with Newco’s written approval.